Haryana

Ambala

CC/324/2014

MANOJ KUMAR - Complainant(s)

Versus

AMBALA AUTO - Opp.Party(s)

RAJBIR SAINI

13 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

                                                                    Complaint Case No : 324 of 2014

        Date of Institution    : 21.11.2014

        Date of Decision       : 13.09.2017

Manoj Kumar son of Roshan Lal r/o village Milk Tehsil Naraingarh District Ambala.

……Complainant.

Versus

1. Ambala Auto Mobile India Ltd, Show Room No.1, near Jail Bridge, Ram Nagar, Baldev Nagar Camp, Chandigarh Road Ambala City through its Manager.
2. General India Motor Pvt. Ltd. Chanderpura Industrial Estate, Halol-389351 District Panchamahals, Gujrat.

……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:       SH.D.N.ARORA,PRESIDENT.

                        MS. ANAMIKA GUPTA,MEMBER.

                        SH.PUSHPENDER KUMAR,MEMBER.                       

Present:          Sh. Rajbir Saini, Adv. for complainant.

                        Sh. Nikhil Handa, Adv. for OP No. 1.

                        Sh.Harjot Singh, Adv. for OP No.2.

ORDER

                        The complainant has filed the present complaint against the OPs with the averments that on 12.01.2014 he had purchased a Chevrolet Sail TCIDI Car bearing registration No.HR-04E-8205 from OP No.1 for a sum of Rs.6,95,000/- duly manufactured by OP No.2.  After two months of purchase, some parts of the chassis/body of the car caught rust; therefore, he visited OP No.1 where he was asked to wait for some time and to watch whether the rust is increasing or not. Thereafter, he noticed that rust was increasing day by day therefore, he again visited OP No.1 in June, 2014 but after checking it was intimated to the complainant that it is a major problem and manufacturing defect in the body steel and paint of vehicle and the car would be replaced within one or two. The complainant kept waited for either to replacement of his car or to return the price thereof by the OPs but to no avail.  At the time of purchasing of car, the complainant had exchanged his old car and the OP No.1 had assured for providing of Rs.20,000/- as exchange bonus within one month but it had not been given by the Op No.1 after lapsing of 8 months. The complainant got served legal notice upon the OPs but to no effect. In evidence, the complainant has tendered affidavits Annexure C1, Annexure C2 and documents Annexure C3 to Annexure C12.

2.                     On notice, OPs appeared and contested the complaint by filing their separate replies. OP No.1 in its reply has submitted that after delivery of the vehicle the complainant approached OP No.1 on 22.01.2014 at 1206 Kms for first re-assurance checkup, thereafter, the vehicle was delivered to the complainant in good condition vide job card No.000953. The complainant again visited OP No.1 on 23.01.2014 for accidental repair vide job card No.000956 and after repair the vehicle was delivered to him vide B No.1R000282 on 25.01.2014. The complainant against visited OP No.1 on 29.05.2015 at 7109 KMs  for first free service vide job card No.000849 and after service vide job card No.000849 the vehicle was delivered to him vide B No.1R000402 dated 29.05.2014. Thereafter the complainant again visited OP No.1 on 05.06.2014 at 7776 KMs for running repair and rusting problem which was checked by Body shop and after checking it was found that there was no rusting on the vehicle and the vehicle was taken by the complainant upto his satisfaction. The complainant again visited OP No.1 on 17.09.2014 at 13575 KMs for running repairs and on that day IP Panal Assay and Link Assay front stab were replaced under warranty and the vehicle was delivered to the complainant upto his satisfaction. Again he visited Op No.1 on 01.10.2014 at 15034 KMs for second free service which was got done and delivered to the complainant upto his satisfaction. The complainant again visited OP No.1 on 18.06.2015, for paid service which was got gone and complete left front door with new one was replaced and the car was delivered to the complainant on 25.06.2015.  There is no deficiency in service on the part of OP No.1 as there was no major/manufacturing problem in the body steel and paint of vehicle. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                     OP No.2 in its separate reply has submitted that the vehicle had met with an accident on 23.01.2014 when it had run 1303 KMs and the same was repaired by OP No.1 after charging a sum of Rs.12,000/-. The vehicle again met with an accident on 02.10.2014 and painting work was got done and Rs.2000/- were charged for this but the complainant has concealed this material fact this Forum.  The OP No.2 being a manufacturer of the vehicle and the complainant are bound by the agreement of warranty. There is no manufacturing defect in the vehicle and the present complaint has been filed by the complainant just to extract Rs.20,000/-  and OP No.2 has been dragged in the present litigation unnecessarily.  The relationship between OP No.2 and OP No.1 is on principal to principal basis  and for any act and conduct of Op No.1 OP No.2 cannot be held liable.  As per warrantee agreement the sensory complaint, as well as parts designated as requiring periodic replacement are not covered under warranty and any negligence act on behalf of the consumer is also no covered under the warranty. It the complainant was not satisfied with the repair done by OP No.1 then he could have again approached it for rectification of the same under the warranty agreement without any costs. The vehicle was running properly and had crossed 18000 KMs after doing the major work of denting and painting on 02.10.2014. No discharge/exchange bonus was ever assured or promised by No.2 to Op No.1 and the Op No.1 is the best person to reply. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made.  In evidence, the OP No.1 has tendered affidavit Annexure RA/1 and Op No.2 has tendered affidavit Annexure RY and documents Annexure OP2/1 to OP2/3. The Op No.2 filed an application for producing the vehicle by the complainant for examination from their expert but the same has been dismissed vide separate order.

5.                                 Main grievance of the complainant in this case is that the OP No.1 has sold the defective car and cheated the complainant as the some part of the chassis/body of the car caught rest within two months after purchasing of the car and he approached to the OP No.1 and also showed the rusted part of the car but as per the OP No.1  there was manufacturing defect in the vehicle and also asked the complainant to wait for some time, otherwise the vehicle would be changed but the OPs have not removed the defect nor changed the vehicle in question despite many requests. It has been further argued that the OP No.1 has also not provided Rs.20,000/- as exchange bonus to the complainant despite assurance.  

6.                     On the other hand, learned counsel for the OPs have argued that there was no manufacturing defect in the vehicle in question and the vehicle had already met with accident twice and the complainant has been attended properly the defect in the vehicle was also removed upto the satisfaction of the complainant. It has been further argued that it was for the complainant to move an application under Section 13 (1) (c) of CP Act to get the vehicle examined through an expert at initial stage but it has not been done so and the document Annexure C12 wherein it has been mentioned that vehicle is having manufacturing defect and the same cannot be removed is no evidence in the eyes of law as the person who had given this opinion is not a qualified person. It has been further argued that there was no scheme of giving Rs.20,000/- as exchange bonus, therefore, the present complaint may kindly be dismissed.

7.                                 After hearing learned counsel for the parties and going through the record it is clear that the complainant had purchased the vehicle from OP No.1 duly manufactured by OP No.2.  Though the complainant has taken a plea that the vehicle was having manufacturing defect and it also caught rust within two months of its purchase but in support of this plea he has not placed any reliable and authentic evidence on the case file. It was open for the complainant to get vehicle examined mechanically by moving an application under Section 13 (1) (c) CP Act through an expert at initial stage when he had filed the complainant as well as at the time of leading evidence but it has not been done so. Though the complainant has tendered affidavit one Pardeep Kumar, mechanic of denting and painting of Saini Motors into evidence as Annexure C2 but his evidence is not helpful to the case of the complainant as it is strange that during the pendency of this complaint the complainant had brought his car to a private person and obtained the report dated 27.08.2016Annexure C12 at the back of the OPs.

                                    In the present case it appears that the complainant has not approached to this Forum with clean hands and has suppressed the material facts qua accidental repair of the vehicle twice as is evident through Annexure OP-2/1. Perusal of this document reveals that the complainant had paid Rs.11950/-  and Rs.2000/- on 25.01.2014 and 02.10.2014 on account of denting and painting charges. It is  a settled principal of law that he who seeks equity must do equity with others but in the present case the complainant has claimed deficiency in service on the part of the OPs but on the other hand he has not come to this Forum with clean hands. The OP No.1 and Op No.2 in their separate replies have taken specific plea that the vehicle of the complainant had met with accident twice but the complainant has not rebutted the same. Moreover, in the service and warranty card produced on the case file as Annexure OP2/2 it has been clearly mentioned that the warranty would he void in a condition of Accident, damage, loss or destruction due to negligent, careless use of vehicle.  The complainant has pleaded that the vehicle caught rust within two months purchase of the vehicle and in support of his plea he has placed reliance of Annexure C3 i.e. job card  dated 05.06.2014 but this document is also not helpful to the case of the complainant because issuance of this job sheet the vehicle was already repaired  on 25.01.2014 on account of accidental damage, therefore, the complainant cannot raise this plea at this stage. The plea of complainant qua providing Rs.20,000/- by the ops  as exchange bonus is remained unproved on the case file because there is nothing on the file to show that the OPs have ever assured for providing the same, therefore, the complainant cannot be allowed to take undue advantage of the benevolent provisions of Consumer Protection Act for the wrongs done by him. Accordingly, we hereby dismiss the present complaint leaving the parties to bear their own costs. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 13.09.2017                                                             Sd/-           

                                                                                              (D.N.ARORA)

                                                                                                  PRESIDENT

 

                                                                                                  Sd/-

            (ANAMIKA GUPTA)

                                                                                        MEMBER                                                                                               

                                                                                                          Sd/-

                                                                                    (PUSHPENDER KUMAR)

                                                                                                MEMBER